State v Iasumi [1978] PGNC 9; N163 (14 August 1978)

Unreported National Court Decisions

N163

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V.
KAIWA IASUMI

Daru Western Province

Wilson J
10-11 August 1978
14 August 1978

CRIMINAL LAW - manslaughter - what amounts to criminal negligence considered - event which is “unintended, unforeseen and unforeseeable” is an accident at law - criminal negligence depends on the probable, not the actual, result - see sections 23, 303, 307 and 314 of Criminal Code Act 1974.

Cases Cited:

Timbu-Kolian v. The Queen (119) C.L.R. 447 applied

Andrews v. Director of Public Prosecutions (1937) A.C. 576 considered

Akerele v. The King (1943) A.C. 255 followed

14 August 1978

WILSON J: Kaiwa Iasumi is a 17 year old village youth who has been charged with manslaughter. The charge arises out of a shooting accident which occurred in the villaown as Setawi in the Morehead area on the 18th January 1978. A small boy, Segera Gawgu, age, aged about 4 years, was shot by an arrow fired from a bow; he subsequently died. Interesting features of this case include the setting in which the events occurred (a small village in a fairly isolated part of the Western Province of Papua New Guinea - where hunting is a part of the way of life) and the nature of the weapon used (a bow and arrow - a genuine weapon in all respects including its steel-tipped arrow - not at all a toy or a child’s play-thing).

In the early afternoon of the 18th January the accused, who earlier in the day with friends from the same village had been drinking a kind of potent home brew called Tuba, decided to go down and shoot a hen with a bow and arrow. He left the native-materials village house in which he and his friends had spent some time together, got a bow and arrow, went outside and then, upon seeing a hen under the house (the house was built on posts or stilts and its floor-level was above ground-level), he fired an arrow under the house in the direction of the hen. Unfortunately, the arrow missed its target and it flow through the air, passed the hen, beyond the far side of the house, through a line of plants and into an area adjacent to the area where the events just described took place, and it there, out of the accused’s vision, struck the deceased child, Segera Gawgu, who with two other children had been playing behind the line of plants and in the vicinity of a half 44 gallon drum of water. The arrow struck the deceased in his side just above his hip - it stuck fast - and later had to be pulled out. The deceased died the next day from the wound caused by the arrow.

The trial in this matter occupied a substantial part of three days of these sittings. The real issue in the case was whether the accused, by acting in the way he did and, in particular, by firing the arrow in the circumstances described, was guilty of criminal negligence or whether, on the other hand, it was an accident.

Although it was necessary for the facts to be examined carefully, at the conclusion of the evidence there was really little dispute as to what happened. I may deal with the witnesses quite quickly. Dari Marai was one of the accused’s companions who had been drinking Tuba that day and who was with the accused when he (the accused) decided to leave the house and go down (to the area outside and below the floor-level of the house) to shoot a hen. Dari did not see the accused pick up the bow and arrow and he did not see the arrow being fired. Dari was aware of the presence of the children behind the plants.

Kituparu Tuami was another of the accused’s companions who was called to tell much the same story.

Both of these witnesses told stories at this trial which contained inconsistencies, i.e. inconsistencies with other evidence given by them or inconsistencies with the stories given by them at the District Court, where the committal proceedings had taken place. Neither of these witnesses impressed me as being witnesses of reliability and accuracy. Dari was careless with the truth, e.g. as to the ownership of the arrow. Kituparu was more affected by Tuba than the others and his evidence was coloured too by the fact (as he admitted) that he was cross with the accused. Dari admitted that he changed his story regarding what the accused said as he left to go and get the bow and arrow. I do not say that these witnesses were dishonest. Applying to their testimony and to that of the accused, who gave evidence on oath, the sort of approach adopted by me in the case of Manasseh VoetoN163.html#_edn126" title="">[cxxvi]¹, I find myself able to rely on only those parts of the evidence of Dari Marai and Kituparu Tuami as are consistent with the accused’s evidence given in Court before me. To the extent that their evidence is inconsistent, I prefer the accused’s evidence, which was in nearly every respect consistent with what he had told the police in his Record of Interview and which impressed me as a truthful and reasonably accurate account of what happened.

By reference to the evidence of Dari Marai and Kituparu Tuami and that of Constable Mera as well, the State has invited me to infer that the accused knew, or at least ought to have known, that the children were playing in the vicinity of the half 44-gallon drum and that, by firing the bow and arrow when and where he did, he was grossly negligent. Much emphasis was placed upon some evidence suggesting that the plants did not obstruct the view through to where the children were and upon some other evidence of distances. I realize and accept that Constable Mera may have had to work under some difficulties, but the plain fact of the matter is that he made at least one significant error in taking the measurements at the scene (he measured the length of the floor of the house above the ground at 20 cms. when it is clear - as even he acknowledged - it was more in the region of 5 feet) and no satisfactory evidence was obtained by the police or produced at the trial as to the height, thickness and composition of the plants in question or as to the extent to which those plants or the parts of the house would have obstructed the accused’s view of other things in the vicinity as he shot at the hen. The evidence of distances was altogether unsatisfactory. The accused’s evidence as to these matters was carefully given and I saw no reason to disbelieve him. On the other hand there were some defects in the State witnesses’ evidence as to these matters. In the absence of evidence in the form of an accurate plan I feel compelled to give the accused the benefit of the doubt about these matters, and accordingly accept for the purposes of my decision that he fired the arrow without knowing of the presence of the child or his companions in the vicinity of the half 44 gallon drum and in the belief that the only living thing in the vicinity of where he aimed his bow and arrow was the hen. I also gave him the benefit of the doubt regarding the height and thickness of the plants. I accept that the line of plants formed something in the nature of a loose hedge and certainly something which obstructed clear vision through it; it divided one part of the area from the other. The accused’s conduct after the arrow struck the deceased, which was not disputed by the State, was all consistent with innocence; it was consistent with him having realized that he had been involved in a tragic shooting accident.

I therefore find myself unable to feel persuaded to the necessary degree of proof that the accused knew of the presence of the children where they were, or indeed, that the accused, by virtue of any prior notice that he had of their whereabouts, ought to have known where they were.

As far as the accused was concerned, I find that he did not intend any harm to anyone or anything other than the hen; I find that the harm which did result was unforeseen by him; and I find that the event, which did subsequently and tragically happen, was not reasonably foreseeable by the accused. With reference to this last finding, it might have been otherwise (indeed I am of the opinion that it would have been otherwise) if the whereabouts of the children in the vicinity had been proved to have been known to the accused. In that event, a reasonable man, even a reasonable Papua New Guinean village youth in a part of Papua New Guinea where the use of bows and arrows for killing birds and animals is commonplace and customary, ought reasonably to have foreseen that an arrow fired at a hen, albeit under a house, might miss its target and fly into a yard or area (even an adjacent one) where those children might be expected to be.

It is obvious to me that the police suspected that the accused, by virtue of his youth and/or the extent to which he was affected by Tuba, fired his bow and arrow either well-knowing that the children were in the vicinity or without caring to look to see if they were there. However, suspicion is not enough. There must be proof, and it must be proof beyong reasonable doubt. The State would have more nearly persuaded me to find against the accused, if the two witnesses, Dari Marai and Kituparu Tuami, had been more reliable, or if the police had gathered and produced better and more accurate evidence as to the scene where this accident occurred, or if the accused had been shaken in cross-examination.

It was argued by Mr Thompson, for the State, that, even accepting the facts to have been as I have found them, it was reasonably foreseeable that an accident such as did occur would be likely to occur (i.e. that the risk would have been apparent to a reasonable man) and that, accordingly, the accused was guilty of criminal negligence. I am not persuaded that this is so. It was possible that an accident like this would occur, but hardly likely. The event was an occurrence that no ordinary person would reasonably have expected to happen as a result of the accused’s conduct.

Having decided that this event was unintended, unforeseen and unforeseeable I am therefore satisfied that the accused has a defence of accident under s.23 of the Criminal Code Act. Vallance v. The QueenN163.html#_edn127" title="">[cxxvii]², Mamote-Kulang of Tamagot v. The QueenN163.html#_edn128" title="">[cxxviii]³, Ward v. R.N163.html#_edn129" title="">[cxxix]⁴. The relevant part of s.23 for this purpose is:

“Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for ... an event which occurs by accident.”

An instance of this rule of law is Timbu Kolian v. The QueenN163.html#_edn130" title="">[cxxx]⁵. That was an appeal to the High Court of Australia from a decision of a single Judge sitting in the pre-Independence Supreme Court of this country. It was an appeal from a conviction for manslaughter. The appellant and his wife had quarrelled. The appellant had left their house and sat down nearby. Shortly afterwards his wife came out of the house and continued to berate him. He lost patience, picked up a stick and threw it at her. Because it was dark he failed to see that she was carrying their baby. The stick struck the baby on the head and killed it. The appellant had no reason to suppose that his wife would be holding the child. The presence of the child was not known to the appellant. He was convicted of manslaughter. The High Court set aside the conviction, the majority on the ground that the death of the child was an event which occurred by accident within the meaning of s.23.

Applying Timbu Kolian v. The QueenN163.html#_edn131" title="">[cxxxi]⁶ (supra) thesed in this case case ought not to be convicted. Because of the special features in the vicinity, i.e. the posts under the house, the line of plants and the diss involved (I find that the deceased was struck some 60 fee0 feet from where the accused was), the accused failed to see the deceased or the other children. The accused had no reason to suppose that the deceased was there. The presence of the deceased or even the other children was unknown to him. It might have been otherwise (as I have said) if the accused had seen any of the children in that vicinity. It would be unreasonable to conclude that the risk of firing a bow and arrow anywhere in that village was so great as to prevent absolutely the use of such weapons for hunting or shooting purposes and so as to attract to the shooter criminal liability for the crime of manslaughter in the event of the death of a person who was in the vicinity and he was shot instead of the animal or bird of prey.

Whilst Kaporonovski v. The QueenN163.html#_edn132" title="">[cxxxii]⁷, the facts of which case are very different from the present, has qualified to an extent the authority of Timbu Kolian v. The Queen (supra)N163.html#_edn133" title="">[cxxxiii]⁸, in so far as it dealt with the meaning of the word “act” in the first part of s.23 and revealed some differences of opinion among the members of the High Court of Australia as to the meaning of the word “act”, Timbu Kolian v. The QueenN163.html#_edn134" title="">[cxxxiv]⁹ still reman authority regarregarding the meaning of the word “event” and regarding what is an accident.

To look at thistion from another viewpoint, the State, to obtain a conviction here, must prove that the athe accused was guilty of criminal negligence. It hardly need be stated that an event which is unintended, unforeseen and unforeseeable is an event as to which the accused person is neither intentional, nor reckless nor negligent. This accused caused the death of the deceased but he may not be held to be criminally responsible for doing so if, with respect to the deceased, he acted neither intentionally nor recklessly nor negligently. If that be the case, the event is conveniently called an accident.

Criminal negligence is the very high degree of inadvertence to consequences which will ground a conviction for manslaughter. The degree of negligence has variously been described as “culpable”, “criminal”, “gross”, “wicked”, “clear” and “complete” (Andrews v. Director of Public ProsecutionsN163.html#_edn135" title="">[cxxxv]¹⁰. In that case their Lordships said (at p. 583):

“Simple lack of care such as will constitute civil liability is not enough: for purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established.”

It is to be remembered that, as Judge of the facts, I must answer the question of whether the accused was criminally negligent or not by reference only to the situation prevailing when the accused performed the action in issue, i.e. when he aimed and fired the bow and arrow, and not by reference to the consequences which brought him before the Court.

Akerele v. The KingN163.html#_edn136" title="">[cxxxvi]¹¹ - Their hips said (at p. 26p. 264):

“The negligence to be imputed depends on the probable, not the actual, result.”

Applying these principles to the instant case, I am not peed that the accused in the the circumstances prevailing at the time he aimed and fired the bow and arrow displayed a very high degree of inadvertence. The tragic result which occurred on that afternoon at Setawi was not a probable result of the accused’s behaviour. It was possible (the actual events proved that), but it was not a probable result. The deceased being struck by the arrow was not a reasonably foreseeable consequence (see supra p. 4).

Not being satisfied that the State has negatived accident and not being persuaded that the accused was guilty of criminal negligence such as to constitute manslaughter, I find the accused not guilty of the crime as charged in the indictment. The accused is discharged.

Solicitor for the Accused: M. Kapi, Public Solicitor

Counsel: A. Jackson

Solicitor for the State: K.B. Egan, Public Prosecutor

Counsel: M. Thompson

N163.html#_ednref126" title="">[cxxvi]^{Unreported National Court Judgment N134 dated 24th April 1978.}

N163.html#_ednref127" ="">[cxxvii]^{108 C.08 C.L.R. 56}

N163.html#_ednref128" title="">[cxxviii]^{[1964] HCA 21; 111 C.L.R. 62}

N163.html#_ednref129" title="">[cxxix] ^{(1972) W.A.R. 36}

N163.html#_ednref130" title="">[cxxx]^{[1968] HCA 66; 119 C.L.R. 47}

N163.html#_ednref131" title="">[cxxxi]^{[1968] HCA 66; 119 C.L.R. 47}

N163.html#_ednref132" title="">[cxxxii] ^{47 A.L.J. 472}

N163.html#_ednref133" title="">[cxxxiii]^{[1968] HCA 66; 119 C.L.R. 47}

N163.html#_ednref134" title="">[cxxxiv]^{[1968] HCA 66; 119 C.L.R. 47}

N163.html#_ednref135" title="">[cxxxv] ^{(1937) A.C. 576}

N163.html#_ednref136" title="">[cxxxvi] ^{(1943) A.C. 255}